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Card v. United States6/28/2001
ggestion that a person who belongs to a certain religious group since the First Amendment and the freedom of expression and the freedom of association, freedom of religion, that there is some suggestion that they cannot be a part of this jury process. In addition to that, my client is a practicing Muslim and on numerous occasions during pretrial matters, he has, in fact, wore his cap. Your honor, regrettably, I have to say that's an opinion that the court possesses that is derived outside of this courtroom. Your honor, regrettably, I would ask that the entire panel be stricken because I think that the explanation that [the prosecutor] gave as to 333 was improper . . . . Your honor, [the prosecutor] simply struck him because he was a young, black male similar in age to Mr. Rice, Mr. Edwards, and Mr. Card and I rejected that explanation by [the prosecutor] and I don't think that it's a proper one in light of [the other juror with a bow tie] and also your honor, regrettably, I have to object to the court's comment about that and joining in with [the prosecutor] that there is some suggestion that people of the Muslim religion cannot be fair and impartial.
Other defense counsel agreed, commenting that the prosecutor's stated reason was "reprehensible" and constituted "discrimination" against "an entire segment of the black population." Appellants' counsel continued to argue racial discrimination, however, and the only arguably substantive comment made regarding the constitutionality of a religion-based strike was one counsel's statement, "We sit up in this court and we say hum, that man looks like he belongs to a suspect category without even having established that the suspect category in and of itself would be enough to exclude someone from jury duty . . . . I just do not understand how the court can affirm that way of thinking."
It is abundantly clear from this record that defense counsel found the prosecutor's explanation for the strike morally offensive. Nonetheless, we cannot agree with appellants that it was unreasonable for the trial court to interpret counsel's argument as essentially renewing the existing Batson objection, i.e. "systematic exclusion" of blacks in general and young black males in particular, and that discrimination on the basis of race was the ultimate constitutional issue.
First of all, defense counsel had not objected to the prosecutor's stated reason for striking Juror 333 at the time of the strike, remaining silent even when the trial court soon thereafter indicated that it had now "heard the Batson challenges with respect to all the jurors that were struck." Although this fact did not necessarily render counsel's final Batson objection untimely, see Tursio v. United States, 634 A.2d 1205, 1210 (D.C. 1993) ("Batson motion will be timely when made at any time before the jury is sworn"), it did put a greater onus on defense counsel to be clear if they intended to raise an entirely new and distinct Batson-like claim, i.e. discrimination based on religious affiliation.
Second, at the time of the final objection, the only "new" information was that a juror of similar appearance had been seated, thereby creating a basis for a "pretext" argument in relation to the racial discrimination charge. The court, therefore, had no reason to focus on this issue as a basis for a religious discrimination claim.
Third, although counsel did refer generally to the First Amendment, they never mentioned equal protection or provided any legal argument whatsoever for extending Batson beyond race. Admittedly, this omission might not be as important today, post-J.E.B., where the Supreme Court has already extended the relevant doctrine to other protected cla
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